date

10 Dec r 1807 Scotch Reform
10 Dec r 1807

Scotch Reform

Letter V

Ch.2. Utility

§.1. against local influences

But in that character its beneficial influence must naturally be small indeed in comparison of that which it exercises in the more efficacious though unappretiable (and in individual instances separately taken altogether undiscernible) character of a preventative.

If, notwithstanding the security thus afforded, in one suit out of a hundred, the decision receives a tinge from the influence of the morbific cause, that security removed, the same mischief might not unreasonably be expected to take place in at least ten suits out of the hundred. At present, the tendency to misdecision being kept under by the apprehension of exposure, the effect will naturally be confined to cases, that, having more or less of dubiousness in their complexion, present themselves as affording room for bonâ fida difference or mistake: take away this check, the efficacy of the morbific cause might not be prevented from extending itself to the clearest cases.

No case can be there[?] than those in which wilful disobedience to statute law has been manifested and [...?] [...?] manifested[?] by case by English Judges - Vol. Costs.[?]
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    Without supposing any thing unfavourable to judicial probity in the air of Edinburgh in comparison of that of London, 1 the comparative narrowness of the circle in which Judges move, 2 as well as the superior multitude of seats in the northern judicatory - 3 not to mention other circumstances less prominent and unquestionable, such as the still more deplorable uncertainty and unsteadiness of the rule of action - concurr in exhibiting the danger in question in such a magnitude, as to render the London remedy, notwithstanding the price paid for it in the shape of encrease of delay, vexation and expence, a beneficial one upon the whole.

    In the character of a corrective, I should expect to find the utility of the remedy not altogether undiscernible. But in this character, beneficial that its utility must naturally be, small indeed in comparison of that which it produces in the more efficacious though unappretiable and in individual instances undiscernible character of a preventative. If, not-withstanding the security in question, in one suit out of a hundred, the decison has received a tinge from the instances of any such sinister courses, that security removed, the same mischief might not unreasonably be expected to take place in at least ten out of the hundred. At present, the tendency to misdecision being kept under by the apprehension of exposure, the effect will naturally be confined to cases that having more or less of dubiousness in their complexion, afford room for bonâ fide difference or mistake: take away this check, the efficacy of the sinister cause would have little to prevent it from extending to the clearest cases.
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    In all countries the judicial authority has of course been more or less in the habit of disobeying the mandates of the legislature. Cases of disobedience more determinately wilful, and which the impossibility of honest misconception is more compleat, can neither exist nor be conceived than what have been realized, and even continue to be exemplified, by English Judges as towards the declared will of Parliament: and in Scotland still greater liberties have been taken by the supreme judicial Court with the authority of the supreme legislature, than in England.

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    In this state of things, suppose for argument's sake it were referred to the Scotch Peerage - to a body consisting of persons whose faculty of exercising a sinister influence on the decisions of the supreme local judicatory might well be supposed to be at its maximum - suppose it were even referred to a body so composed to give a determination on the question whether to return or not the appellate jurisdiction of the House of Lords over the Scottish judicatories, my expectation would be to find the answer in the affirmative.

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